THE WAY WE LIVE NOW: 9-03-06: IDEA LAB; It's Congress's War, Too

By Kenneth Anderson

Published: September 3, 2006

Two branches of our government are hard at work in the war on terror. Sometimes, to be sure, they work at cross-purposes. Executive agencies devise a warrantless surveillance program -- and a federal judge declares it unconstitutional. Administration officials and federal bureaucrats devise rules for trying accused terrorists in military tribunals -- and the Supreme Court, in its Hamdan decision, sends the tribunal drafters back to the drawing board. Yet for all their differences, the executive and judicial branches each have important roles to play in establishing U.S. counterterrorism policy.

But where are the people's elected representatives in all this? After all, the Hamdan decision, despite leaving many momentous questions open, makes one thing reasonably clear: responsibility for democratically establishing policy in the war on terror falls to the legislative branch. So where is Congress? Irrespective of where you come down in the debate on the war on terror -- including whether it should even be conceived of as a war -- counterterrorism policy should be formed through Congressional legislation, the only legitimate mechanism for the long haul in a democracy. This ought to be a priority for both Congress and the Bush administration, because no matter who wins the 2008 election -- or the 2006 midterms -- there is not likely to be any coherent national counterterrorism policy at all past the end of the second Bush administration unless Congress takes steps to legislate it and go beyond merely executive discretion.

Some in the Bush administration have fixated on this question of executive discretion, insisting that the successful prosecution of the war on terror requires strong executive power -- power they see as eroding since Watergate. But in considering its next move, the Bush administration should mark well that what lives by executive discretion also dies by executive discretion. If a comprehensive national counterterrorism policy -- that is, a war on terror -- is as important as the White House believes it is, then it merits the blessing of the legislature and ought not to exist merely at the discretionary whim of some future president.

What would comprehensive legislation to institutionalize national counterterrorism policy look like? Counterterrorism can be construed to cover almost anything you like -- this is why it can so threaten civil liberties. But those policies that matter most are the ones that bring America's basic values into the struggle against terror. Such policies have deeply divided the American people and deserve answers whose democratic legitimacy can only come from the people's representatives.

Surveillance at home and abroad

Whatever you think of the legality of, for example, the National Security Agency's surveillance programs, or Judge Anna Diggs Taylor's ruling of unconstitutionality, Congress needs to decide plainly on the balance between national security and civil liberties that such programs represent. A deal is in the works that puts oversight into the hands of the Foreign Intelligence Surveillance Act court. But the bottom line is not so much who does the oversight as something more basic: if you are reasonably thought to be calling numbers reasonably thought to belong to terrorists abroad, the American people expect their government to try to listen in.

Detention and rendition

The Bush administration claims the right to hold detainees in the war on terror for the duration of the conflict. Its critics counter that the war in question is defined so loosely that you might as well say that detainees may be held until the global war against evil is won and it is banished from the world. Guant?mo has received much understandable criticism; the administration's critics in turn can be questioned for imagining to themselves that the Bush administration's detainees are luckless shepherds. Some are; some aren't. Even Human Rights Watch acknowledges that some ''really bad guys'' are being held in secret C.I.A. centers abroad. These are serious jihadists, not people to just turn loose. Who should decide how to handle this? Under any administration, serious counterterrorism policy will recognize that people will, in fact, be detained, and we have to have a place and a manner for dealing with them. Only the very wishful can believe that the issue will go away or that it goes away merely by closing Guant?mo.

A domestic intelligence agency

Does the U.S. need a dedicated domestic intelligence agency, similar to Great Britain's MI5, rather than relying on the F.B.I.? The F.B.I. excels at solving crimes that have already been committed. It is not good at, and not really interested in, finding needles in haystacks. Yet this is precisely what much intelligence work is about when it comes to preventing terrorist attacks rather than investigating them afterward. Establishing such an agency would be an unprecedented and potentially liberty-threatening step, never before seen in this country. Does the threat of catastrophic terrorist attacks -- possible plots against the Sears Tower or New York City tunnels, to take two recent examples -- warrant a whole new system of domestic intelligence?